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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Best books of 2006 Hello 2007 Gerald Ford and the Transformation of the American Party System A Truly Poor Metaphor: "The Constitution is a Contract" The Laziest Son - A Rumination The Metamorphosis Clueless in Silver Spring Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely) “I don’t think the public would stand for it.” Should we have executed Jefferson Davis and Robert E. Lee? A Christmas Musical Mystery On Friendship, and a New Year - A Meditation Ogres Are Like Onsions The Anti-Torture Memos
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Sunday, December 31, 2006
Best books of 2006
Sandy Levinson
The Austin American-Statesman asked me, along with many other Austinites, to select the best book we read of those published in 2006. My response follows: Hello 2007
Brian Tamanaha
2006 was a difficult year for America. 2007 will be better. People are standing up and pulling together. Gerald Ford and the Transformation of the American Party System
JB
People today may be surprised to learn that Gerald Ford supported affirmative action and was a moderate on abortion rights. But that's because they have forgotten what the Republican Party was until Ronald Reagan and the New Right effectively remade the Republican coalition in 1980. Saturday, December 30, 2006
A Truly Poor Metaphor: "The Constitution is a Contract"
Brian Tamanaha
In response to my post yesterday listing the problems with the "orginal meaning" theory of constitutional interpretation, Bart DePalma, an articulate reader of this blog, argued in response that this theory is the only correct one. His argument rested on this claim: "The Constitution is a contract..." If we don't enforce the terms of the contract as the parties intended, DePalma argued, the contract is "a nullity." The Laziest Son - A Rumination
Scott Horton
A man on his deathbed left instructions The Metamorphosis
JB
One morning, as Pierre Schlag was waking up from anxious dreams, he discovered that in bed he had been changed into a monstrous footnote, footnote 233 to be exact. Schlag, a law professor at Colorado, has long been one of the most interesting members of the American legal academy. His entire career has been one long epatez le bourgeois directed at the traditional forms of legal scholarship. His 2004 essay (now up on SSRN), "My Dinner at Langdell's," is an amusing rumination on how law professors become reduced to footnotes: authorities cited by other law professors to stand for certain arguments, positions, and propositions. Indeed, Schlag suggests, if we are successful, that is what we are fated to become, and indeed, all that we become: Another way of putting it is that every scholar hopes to become a successful meme, which catches on, and which is repeated and repeatedly discussed throughout the generations. That is so even if the meme becomes increasingly ambiguous, increasingly foreshortened, increasingly separate from what we believed our thought and our personality to be about. We all want to be memes, because being a successful meme means surviving, it means being perpetual. The problem of being a meme, however, is twofold. First, as one is perpetually repeatedly, one will be perpetually misunderstood-- one will be foreshortened, summarized, synthesized, bowlderized, taken out of context, and used for a whole host of purposes and causes that will send shivers down one's spine. Second, as one's ideas are repeated and cited, they lose connection with who one feels one is-- the flesh and blood person who originated those ideas, and who was motivated to state them at a particular time in a particular context and with a particular motivation and purpose. The meme stands for us, but it is not us; it is a false mask that is associated with us, and the likeness is not always flattering. People mistake us for something we said twenty years ago-- that is, if anybody cares what we said twenty years ago. But that, of course, is the rub. For the alternative to being cited, and miscited, and taken out of context, and reduced to a shorthand, or a phrase, is not to be cited or discussed at all. As Oscar Wilde once said (and thus, in the process is mis-re-presented by my very citation of his words), the only thing worse than being talked about is not being talked about. Perhaps our concern about preserving our authenticity is misplaced. Perhaps a significant part of us, if not most of us, is what we mean to others, what other people think we signify, what they think we stand for, what they remember of us and about us. If that is so, then perhaps we should embrace ultimately becoming a meme, or a symbol, or a footnote, or a memory. You might think that Schlag, who began his career as a postmodernist, would embrace this thoroughly postmodern view of the self as a bundle of representations in the eyes of others. But it seems clear from his essay that he resists, and the reason is not difficult to tell. Even if we put aside the belief in a spurious authenticity which is separate from what others think of us, even if we reflect that a part of what we are, and what we will be when we die, is what others think of/say about/remember about/ us, some representations will please us better than others. And, more to Schlag's point-- for his is also an attack on legal thought-- some ways of remembering will actually promote creative thought, while others will tend to arrest it and limit it. Friday, December 29, 2006
Clueless in Silver Spring
Mark Graber
My name is Mark A. Graber and, apologies to Brian Tamanaha, I do not have a clue as to what it might mean to be a legal formalist as opposed to being a legal realist. Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)
Brian Tamanaha
Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism. Thursday, December 28, 2006
“I don’t think the public would stand for it.”
Ian Ayres
When asked during his vice-presidential confirmation hearings about whether he would grant Nixon a pardon should he need one, Ford replied: "I don't think the public would stand for it." Tuesday, December 26, 2006
Should we have executed Jefferson Davis and Robert E. Lee?
Sandy Levinson
The New York Times has just indicated that an Iraqi appeals court has upheld the death sentence for Sadam Hussein "in a decision that clears the way for his execution within 30 days, Iraqi officials said." I suspect that most Americans, rightly or wrongly, believe the answer is no, that the wisdom of Lincoln's Second Inaugural was precisely to avoid "malice" toward the defeated South, including its leaders. From a more realpolitik perspective, the answer is surely no, unless one is willing at the same time to support a far, far more rigorous and bloody "reconstruction" (also known as "regime change") against the insurrection that would surely have been multiplied had Davis and Lee swumg from the gallows. So why should anyone cheer the imminent execution of Saddam Hussein, however much one may believe that if capital punishment is ever justified, then he surely qualifies? Can any sane person believe that his execution will in any manner whatsoever serve to bring any further stability to Iraq? The United States is without the slightest authority, moral or political, to intervene in this "self-inflicted wound" (to quote Charles Evans Hughes's description of some notable Supreme Court fiascoes). Can anyone, or are we doomed, as in a Greek tragedy to the execution of the tyrant followed by ever-increasing retaliation against Shi'ites and so on. Does any sane person believe that a "surge" in US forces, coupled with Saddam's execution, makes the slightest bit of sense, unless we want to declare ourselves unequivocal partisans of the Shi'ites (and, indirectly, of increased Iranian influence?). Posted 2:03 PM by Sandy Levinson [link] (47) comments Monday, December 25, 2006
A Christmas Musical Mystery
JB
Have you noticed that the opening four notes of "Rudolph the Red Nosed Reindeer" are the same as those of "Silent Night?" (Try singing "Rudolph the Red" and then "Silent Night" and see for yourself.) Coincidence? I think not. Sunday, December 24, 2006
On Friendship, and a New Year - A Meditation
Scott Horton
"Even while understanding that friendship includes a great number of important advantages, it must be said that it excels all other things in this respect: that it projects a bright ray of hope into the future, and upholds the spirit which otherwise might falter or grow faint. He who looks upon a true friend, looks, as it were, upon a better image of himself. For this is what we mean by friends: even when they are absent, yet they are with us; even when they lack some things, still they have an abundance of others; even when they are weak, in truth they are strong; and hardest of all to say, but also most deeply felt: even when they are dead, in truth they are alive with us, for so great is the esteem of a true friend, the tender recollection and the deep longing that still abide with them." Saturday, December 23, 2006
Ogres Are Like Onsions
Ian Ayres
Friday, December 22, 2006
The Anti-Torture Memos
JB
The Anti-Torture Memos
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |